When Can an Employer Influence an Employee’s Healthcare?
Kellie G. Olah, CVPM, SPHR
Veterinary Business Advisors, Inc.
Although few if any employees would object if their workplace offered free gym memberships or access to voluntary smoking cessation programs, the situation could be quite different if certain health benchmarks or procedures were made mandatory.
This therefore raises the question of when an employer can require employees to have a vaccine, for example, or to stop smoking, lose weight, or comply with other health-related actions, including with legal activities that take place outside the workplace.
Here is some guidance on four different topics.
With more than one COVID-19 vaccine on the horizon, the question of whether employers can mandate vaccinations is a hot topic, especially in workplaces that provide health-related services—and, in general, the answer is “yes.” Vaccinations can in fact be required, given that employers appropriately consider any requests for religious and medical accommodations.
More specifically, employers who plan to mandate the vaccine should consider:
- Religious accommodation requests under Title VII of the Civil Rights Act of 1964: How a “sincerely held religious belief” is defined will depend upon the court; in general, a personal objection to a vaccine—or an ethical one—is not sufficient and, even if such a sincerely held belief is effectively established, an employer can still mandate the vaccination if the lack of one will create an undue hardship for the company.
- Medical accommodations requests under the American with Disabilities Act (ADA): Employees who work for companies that will require a vaccine and want to obtain a medical accommodation must provide evidence for a disability that’s covered by the ADA. As far as vaccine sensitivity or allergies go, court decisions have been split over whether those qualify.
Although it’s COVID-19 that is bringing this issue to the forefront, the topic of mandatory vaccinations is not new. The same debates that will likely occur have already happened in connection with the flu vaccine, with case law currently existing in places where employees would be providing direct patient case. How court decisions will unfold during the pandemic era—and whether current case law will be upheld for COVID-19—remains to be seen.
If, after examining pros and cons, your practice plans to have a mandatory vaccination requirement, create a carefully written policy so that employees are clear about what’s required, including the process for requesting accommodations or waivers. When vaccination time draws near, be prepared to address any requests for accommodations thoughtfully and consistently, and then carefully document what takes place.
People who smoke are, overall, sick more often, using up more sick days. Because of this, they use their health insurance more often than non-smokers. In general, they often take more breaks at work, usually because they want to smoke a cigarette.
Companies that are concerned about how smoking can affect a worker’s absenteeism rates and productivity during the day may decide to implement a mandatory smoking cessation policy. This policy may, for example, give employees a certain time frame to stop smoking and, to help, the company may decide to cover the costs of a smoking cessation program. Companies that provide health care benefits for employees may be more likely to implement a required cessation policy because employees who smoke are more expensive to cover than non-smokers.
But is that legal?
As far as federal law goes, this issue isn’t addressed. So, to discern whether your practice could implement this kind of policy, look at your state laws—more specifically, looking for any “lifestyle discrimination” or “off-duty conduct” laws. In some states, employers cannot dictate whether or not an employee engages in a legal activity on their own time at a location outside the workplace. In states where these laws don’t exist, your practice may be able to create a policy where employees must stop smoking as a condition of continued employment.
Weight Loss Mandates
Now, what about workplaces that require employees to manage their weight, either because of health or health care concerns, or because it projects the wrong image for a company? Is this possible?
First, weight is not a protected class under federal law, unlike race, age, gender and so forth. So, this means that employers can often legally fire employees who are overweight. Having said that, if an employee’s weight qualifies as a disability, an employer who terminates that employee may be engaging in disability discrimination, according to ADA. Plus, if a company did decide to fire overweight employees—and this disproportionately affected ones of a particular gender or certain race—this may not be legal.
It’s also important to look at state and city law to see what, if any of them, provide relevant anti-discrimination protection for employees. In the case of weight issues, the state of Michigan and a few cities, including Washington D.C. and San Francisco, protect employees from weight-related discrimination. Because new laws are put on the books all the time, check yours before creating any policies that may run contrary to them.
Also consider the Affordable Care Act (ACA) as well as the ADA before requiring employees to be part of weight loss programs. By requiring them to set weight loss goals and weigh in to continue receiving benefits or to avoid work-related discipline, this could be considered illegal under both of these laws.
If your practice is considering the implementation of any of these health-related requirements for employees, it makes sense to consult with your human resources attorney before creating a policy and then to have the attorney check it before it is shared.
Once a policy is approved, ensure that everyone in the workplace receives a copy (it can be wise to have them sign that they’ve received their copy) and set aside a time to discuss the new policy with them and answer any questions.
Also, the Centers for Disease Control and Prevention (CDC) encourages employers to implement workplace health programs and policies to “meet the health and safety needs of all employees.” This can include offering health education workshops, providing employees with access to local gyms, having a tobacco-free workplace, providing healthy snacks, and creating an environment that values health and wellness.
Steps include conducting a workplace health assessment and then planning an appropriate program to meet employee needs. Implement and monitor the program to determine its impact and adjust elements of the program, as needed, for optimal success.
Sidebar: Pregnancy-Related Discrimination
As a related matter, ensure that your workplace policies do not potentially discriminate against pregnant employees. When the Pregnancy Discrimination Act amended Title VII, this effectively provided federal protection for them. This means that an employer cannot have special pregnancy-related procedures when it comes to addressing an employee’s ability or inability to work. If, for example, an employee temporarily can’t perform job duties because of her pregnancy, the employer must respond in the same way that they would for any other temporarily disabled employees.
In other words, if non-pregnant employees who are temporarily disabled can modify their work tasks or take on other tasks, or can take a leave, the same must be made available for employees who need accommodations because of pregnancy.
Plus, pregnant employees must be allowed to continue their job as long as they are able. If an employee needs some time off because of pregnancy-related issues, but is able to return to work, the employer cannot require her to stay off work until after the baby is born or require a certain amount of time off duty after childbirth.